have, during the period of his ownership, been satisfied, for his liability to the lessor for any non-payment, or non-performance of them during that period, remains after the assignment, and where there exists any doubt on the subject, it would be advisable to require a covenant of indemnity from the mortgagor. In case a new lease has been granted to the mortgagee under which he has become personally liable to the lessor, the party to whom the re-conveyance is made must enter into a covenant of indemnity against the future rents and covenants.*

It is the duty of any one in whom an estate is vested, either as a mortgagee or trustee, to ascertain that the party calling for the re-conveyance is really entitled to it; but where there is no reason to doubt the title of such person, it would be highly improper to refuse to execute a re-conveyance, and if a party were captiously to do so, he would run the risk of having to pay the costs of any suit which might be instituted for the purpose of compelling him.

It not being expected that every person to whom a re-conveyance is tendered for execution should be able to form any judgment on the propriety of his executing it at all, or in the frame in which it has been prepared, he is entitled to have it submitted to his own legal adviser, at the expense of the party requiring it, prior to executing it, and except in very simple transactions, and where the party has great confidence, both in the person requiring it and his professional adviser, such precaution ought not to be dispensed with.

In a recent case, before the Lord Chancellor, it appeared that a party subjected himself to the annoyance of being made a defendant to a chancery suit, as the trustee of a will, simply on the ground,

* Ante, p. 15, note n.

Angier v. Stannard, 3 M. and K. 566.
Poole v. Pass, 1 Beav. 600.

Winch v. Walker, 3 M. and Cr. 702.

that the deed by which he intended to renounce the trust was framed as a re-conveyance instead of a disclaimer.

Parties seeking a re-conveyance of an outstanding legal estate were formerly exposed to very great inconvenience, in consequence of the infancy of the heir of the deceased trustee or mortgagee, which subjected them to the expense and delay of a chancery suit. The practice which is now frequently adopted of devising trust and mortgage estates to executors or other adult parties, and thereby preventing them descending to an infant heir, has latterly done much for diminishing this inconvenience, and for cases where this precaution has not been adopted, the legislature have, by some recent provisions, provided a remedy by enabling parties so situated to obtain a re-conveyance without the necessity of resorting to a suit in equity.

By the act of 1st William IV., c. 60,' effect is given to the conveyance of infant trustees or mortgagees, made under the direction of the Court of Chancery, and by the 14th section of that act, parties having money to pay to infants, on the redemption of a mortgage, are enabled to obtain a good discharge by paying it into the Bank of England in the name of the Accountant-General of the Court of Chancery or Exchequer.

The benefit of this act, which can be obtained by petition to the Court, is extended to the case of unfound heirs, lunatics, parties out of the jurisdiction of the Court, and several other similar cases, of which the size and object of this work neither admit or require a discussion, and will be found to meet the great majority of those cases where, in consequence of the absence or incompetence of parties, impediments are thrown in the way of persons having the

This act has been explained and amended in several points by the 4th and 5th William IV., c. 23, and 1st and 2d Victoria, c. 69.

beneficial interest in property, acquiring that legal dominion over it to which they are entitled, and for the full enjoyment of which the possession of the legal estate is essential.

Upon the discharge of a mortgage of copyholds to which the mortgagee has not been admitted, the mortgage-deed should be given up with a receipt for the principal and interest, and where a conditional surrender has been made, satisfaction should be entered on the rolls, but no re-conveyance is necessary. If, however, the mortgagee has been admitted, which is not often the case, a regular surrender should be made by him as soon after the payment as convenient, but even then no other re-conveyance will be necessary; but it will be equally important that the mortgagor should obtain a receipt for the money, and the possession of the mortgage and other deeds, and all other securities which he may have given.

The propriety of obtaining a re-conveyance of the legal estate as soon as the purpose for which it was separated from the beneficial interest has been satisfied, and also a surrender or assignment of satisfied terms, has been before adverted to; but the importance of doing so fully justifies a repetition of the advice not to allow a legal estate, whether in the freehold or in a term of years, to remain outstanding after the necessity for doing so has ceased.

On the creation of a mortgage, it is proper and customary for the mortgagee to give a schedule of the deeds delivered over to him; this precaution never should be dispensed with, and on the mortgage being paid off, the redelivery of all such deeds, as well as of the mortgage-deed itself, should always be strictly required.

Where the party calling for a re-conveyance is himself a trustee, and requires the outstanding estate for the purpose of enabling him to execute his trusts, the re-conveyance may be safely made without the concurrence of the cestueque trusts; but if, in parting with the legal estate, the party in whom it was vest

ed goes beyond the mere purpose of conveying it to the equitable trustee, and so deals with it as to facilitate a breach of trust by the trustee, the cestueque trusts ought to be parties to give their sanction to such dealing, for otherwise, if a breach of trust is in consequence committed, the person so re-conveying would be responsible as a party to the breach of

trust.

Angier v. Stannard, 3 M. and K. 566; Poole v. Pass, 1 Beav. 600.

CHAPTER XXXIV.

RELEASES.

RELEASE OF CLAIMS.

To all to whom these presents shall come, I, A. General form B., of, &c., send greeting. Whereas, &c., [recite the of release. occasion for the release.] Now know ye, that I, the said A. B., have remised, released, and for ever quitted claim, and by these presents do remise, release, and for ever quit claim, unto the said (releasee,) his heirs, executors, and administrators, all and all manner of action and actions, cause and causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, and other specialties, covenants, contracts, agreements, promises,

leasehold

a If the release be by executors to a legatee of leasehold Release by premises specifically bequeathed, recite the will of the testa- executors to a tor, the time of his death, and the proving his will, and that legatee of the debts have been satisfied, and that the executors had premises. agreed to execute such release of their estate and interest in the said premises as hereinafter is expressed: The executors will then release unto (the devisee,) his executors, administrators, and assigns, all their estate and interest in the premises.